Child and Family Law Journal

Child and Family Law Journal


The phrase “til death do us part” is both poetic and aspirational. It is the ubiquitous vow Americans make to one another when they marry[1] and embark on what is “hopefully enduring.”[2] But life does not always meet the aspirational marks we set and that is most true in the context of marriage and divorce. Each state enjoys nearly exclusive control over this intimate relationship, which results in different regulatory schemes across the United States.[3] Changes in Supreme Court jurisprudence over time ensured state regulation of marriage did not run afoul of the Constitution.[4] These decisions found marriage to be a fundamental right under the Fourteenth Amendment.[5] The Court addressed the issue of divorce in the same context.[6] But the Court has yet to squarely address the issue of marriage and divorce under the First Amendment. Divorce might very well be a fundamental right under a similar substantive due process analysis, but that is not the only potential source of its constitutional protection.[7] This comment provides the framework to argue that North Carolina’s year-long separation requirement is unconstitutional under the First Amendment because it violates an individual’s right to freedom of expressive association, freedom of intimate association, and freedom from compelled speech.

[1] Caralynn Lippo, Why We Say “Until Death Do Us Part” In Wedding Vows, RedBook (Apr. 24, 2017), https://www.redbookmag.com/love-sex/‌relationships/‌a49934/‌until-‌death-‌do-‌us-‌part-‌wedding-‌vows-‌origin/#:~:‌text=‌The%‌20oldest%‌20standard%‌20wedding%‌20vows,to%‌20love%‌2C%‌20cherish%‌2C%‌20and%‌20to.

[2] Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (“We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”) (emphasis added).

[3] Boddie v. Connecticut, 401 U.S. 371, 385 (1971) (Douglas, J., concurring) (“The power of the States over marriage and divorce is, of course, complete except as limited by specific constitutional provisions.”); Sosna v. Iowa, 419 U.S. 393, 404 (1975) (“The durational residency requirement under attack in this case is a part of Iowa’s comprehensive statutory regulation of domestic relations, an area that has long been regarded as a virtually exclusive province of the States.”).

[4]See Zablocki v. Redhail, 434 U.S. 374, 375 (1971); see also Sosna, 419 U.S. at 404; see also Loving v. Virginia, 388 U.S. 1, 2 (1967); see alsoObergefell v. Hodges, 576 U.S. 644, 645 (2015).

[5] Loving, 388 U.S. at 12.

[6] Boddie, 401 U.S. at 374 (holding a Connecticut divorce law unconstitutional per the due process clause of the Fourteenth Amendment because the law denied access to the courts based on an inability to pay fees).

[7] See Cathy J. Jones, The Rights to Marry and Divorce: A New Look at Some Unanswered Questions, 63 Wash. U. L. Rev. 577, 579-588 (1985); see also Elizabeth Horowitz, The “Holey” Bonds of Matrimony: A Constitutional Challenge to Burdensome Divorce Laws, 8 U. Pa. J. Const. L. 877, 879(2006).



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